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tv   [untitled]    December 23, 2012 2:30am-3:00am PST

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>> and on what date president? what would you suck sog? >> like the prior case, this is at case where the permit holder is permit is suggestion spend and had this is being considered by the board and perhaps a an earlier date. january 16th. >> i think january 16th this is the ninth is a full calendar. yes.. >> okay so the motion is to grant the rehearing request and rehear it's matter on january 16th. on that motion, vice president phoning. aye. commissioner retar do. eye honorra and that motion is grand the board's decision is no longer in play and the matter will be reheard on january 16th. i would like to take a short break, okay?
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. >> 2012 meeting of the san francisco board of appeals we are returning to our calendar item four d was withdrawn item five was to january 30th and we are actually going to take the next item out of order item number seven appeal #1-one 01 and before i begin there is an alternator in the room and i want to make sure that he is interpreting this matter. okay you can sit down for the moment. okay so this
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is number 1201 - one and diagnosis doing business as the he r c owe o health club inc.,, 630 bush street number 601 and this is in regards to a message establishment permit and my understanding is that the appellate is interesting in requesting a continuance of the this matter and with the president's subsequent to address the board about the continuance. >> yeah and who's the interpreter? okay and i do not hear any -- are you doing the translation services so that -- i'm not sure but i'm here to translate for her. >> translating our is there a need or -- right now to convey what is has been stated
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already?. >> i'm here for the appellate and mr. president and commissioner and is to answer your question directly, she has no testimony to often as far as the continuance but you may have testimony in the body in the continuance which, is not granted and i do -- so interpretive services are not necessary to community what we are saying right now about her case. the question is do you needer her to have this proceeding interpreted or only her testimony? >> so she understand what we are saying. i would think that she would want to hear everything interpreted. >> so if you could please interpret the matter to her? i just wanted to make sure that we are using our services.
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>> so you have two minutes and then you will have a few minutes. thank you very much at the last hearing, i wish i had a cup of coffee we talked so much about coffee but i want to talk about this case i was retained last night and promptly this morning i faxed a formal sub staigs of attorney and requested the date back with the attorney and board at 9:00 o'clock as the director could a test to and i have no previous eye affiliation on the case he is a gentlemen and a colleague but also a competitor of mine we do not share cases so far and there is some illusion here that there is some gang playings and there is not i'm could go. . could go to you tonight to ask for a continuance just to the neck available hearing and it's extensively brief i have treed to read all of the briefs and
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spent all day working ton and there is also the question and we discovered the evidence which appear and had one thing even though it was therapily brief but there is no mention of a very seminal hearing in the health code section 1921 b and i don't know if this will work or not. >> is this meant to be your question, this is jurisdictional and i was asked to produce new evidence. >> i would like to see it please put it up -- so it faces you the way that you would read it. read that very carefully the health code requires -- it's not permissive it's mandatory 20 days notice from the day of the incident to the day of getting written up to the day of the
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hearing in this case, they only gave the appellate 12 days. there was a rush to judgment on this and now i have been trying to get this continuance there seems to be -- i have heard that the city attorney or some allegation or that -- this is a bad place or we have to close it down and there is a sense of urgency i would submit if it was a sense of urgency that the health department would have gone with subsections c which they would have the right do for a semi proceeding. now, on that point. i know there was a companion case that was going to be heard tonight and i understand it's been continued to february 20th is that correct? and it would be appropriate to continue this case, if the opportunity produced more evidence on this and i would need that extra time to submit one brief there are some errors here and i would
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like to correct them and not all of the attorneys swallow and there are some things that can be corrected easy lie by a breech and just go to the next hearing when the companion case is also scheduled to be held and i do want to do it pro confessionally just of hemmed overwhelmed doing it all in one day. >> there was another case a massage parlor operator and petitioner and the petitioner has a different attorney and the parties have mutually agreed to continue that case to a later date because they are close to settling and they need additional time to file the settlement the case is on your docket but pushed out because they parties don't expect to come to you so your request is
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to continuian to january 20th. . >> excuse me i'm sorry as far as administrative economy it would be wise to kel for the same day february 20th but i'm willing i think i can get this all put together by the next hearing if that is the necessity of the board. it's a lot of work. i need more time. >> i understand. thank you.. >> although normally, i would agree to any request or excuse me of any deputy or attorney to the department of public health before receiving this particular request, i would normally always agree to a professional's request for a continuance on the basis of no time to prepare but in these circumstances it's
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pretty clear to d ph that this is a tactical maneuver and it's intended to defeat the city's jurisdiction to enforce it's suspense of the massage parlor owner. in particular, on december third, prior counsel who had represented the owner consistently throughout the case, submitted. tried to submit supplemental belief briefing raising an argument that the massage parlor was under the state's statute and the pre-exempted on the basis that massage parlor had only certified state massage practitioners in it's employment and that would take it outside of the city jurisdiction and now at the time of the offense there is no doubt, that that was not the case and but it appears that this the intervening time, the established ceo health club is
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trying dominate into compliance with the state scheme and get from under the penalties that the city has assessed against it for the entire week i have been contact contacted repeatly on behalf of ceo health club saying oh, gor the owner just fired her attorney and is asking me to step in and represent her and we really need a delay would you agreea delay and i would say no because this jurisdictional issue is clearly in play. and the initial attempted delay came from her original attorney mr. hall and the second came from bill phases zero who had informed me that he called my boss before calling me to see if he could squeeze out a delay in this case and he declined apparently because the next day i got a called from year-old green saying wanted a continuance saying he was going to be the new attorney but when
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i explained the circumstances of this case to him he decided not to represent her and today i got a request from new counsel for a continuance supposedly on evidence newly dissolved and it's based on a permanent discover in july if there is new evidence it's unclear why it cannot be discovered and entered in tonight's hearing and all of the information should be gathered by now and he is not preclude first degree entering new evidence in possession and he can proceed tonight he should be required to proceed tonight and he should not receive more time to get out from under the city's jurisdiction. . >> ms. kaiser is there anyway is that we can satisfy you with respect to the jurisdictional issue that you place voice? i'm not sure what you are
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asking. >> is there anyway to avoid the concern that you have raised and to the extent i'm not familiar with the legal requirements of the practitioners and therefore, i'm not -- like you are going to have to give us briefing on the jurisdictional issue and how it is that the delay could in fact, i mean if a more plausible circumstances? >> it's arguable. the 60 cities going to dispute that it's jurisdiction to impose a penalty for an act that took place when the practitioner was not state licensed. >> that is removed. the state will argue that. but -- it also d ph will argue that when the are confronted with evidence that this is thousand a conforming business under state regulations.
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>> but after fact after the oches, by here's the thing that gives us pause it's in business and professions code friction 12 subsections 22 and it says no pro vision of any ordinance enacted by a city, county or city and county that is in effect before the effective date of this chafter and it requires a licenses permit or other authorization for compensation will be enforced to an vivid certified as chapter or massage business or massage established establishment that employs or uses only persons solved to this chapter to provide massage. the way that language is drafted that certainly races the reasonable argument that the moment the establishment becomes certified the city is deprived of the authority to close the doors of this establishment and
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that is what need to happen in this case. >> this is a farrell new pro vision of the law and this has not been lit gated. >> are you associated in any way in this case? zero. and as i stated. >> so you are saying that you are not prepare to go forward today? i would try william anything but it's very very difficult the brief is extensive as you know. >> is your answers yes or no. no. >> you are not ready? okay thank you. yes. >> when mr. fantastic yo called me after chris hall to say that chris hall had been let go and appellate had been seeking new counsel and in the end when he determined that i was not going to agree to a continuance he said okay, well i guess i'll have to tell chris.
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not the owner, chris. when i spoke to this attorney today about how he came to be involved in the case whether it was through chris hall he said no it was through bill phases zero and so it may be -- it appears to me based on that chain that even if there is no direct relationship and even if you know, my colleague here has been brought in without his knowledge in a sense, there clearly is a connection between chris hall, bill phases zero and counsel here today. i think that is more evidence of game swingship. >> thank you what is the likely timing of the state certification that you have said think applied for state certification is that what is going on? . >> there is a timing in the state legislation. no --. >> i'm sorry i'm hard of hearing. the state certification of the business such that it will
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fall under state jurisdiction and not the county. >> i don't believe there has been any application to ask for a state certificatenition i believe there is a mix-up some of anymore have state certification and some have the 70's license next year and some have both is my understanding and i think her point that she races is the hearing that like she said, it's arguable and attorneys love to argue. itch i have a question for the city attorney. >> can you explain concisely how bower you're going to loose jurisdiction by us granding a continuance just simply put how are you going to lose jurisdiction. >> first of all, i would not concede that goring do lose jurisdiction but there is going to be a strong argument that arises as seen as the owner employs only state certified practitioners she, the moment she does that, she brings
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herself under the ambient of the state statute and it's the language of that statute that i was reading to you that says then you can no longer enforce a local permanent ppermitting scheme. i understand that but that is not by virtue of us granding a tannance but by interpretation of the law. >> our information and i'll ask inspector walsch to speak to this but she has been in the process of trying to convert her workforce to bring herself within the state regularbations and we know that her counsel tried to submit an additional brief raising this jurisdictional argument less than ten days ago. gentlemen yes, i i understand but i do not see how that is relevant to our point of continuance. >> because if you think that is going on do you have any sense of when that might be accomplish accomplishedded? in a week? a month? it's not in our control it's totally
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within her control. but, you know, to the extent that she is seeking to circumstance um, vent the regulatory procedure that we have had to defend and please coiled chimed keep in mind that a continuance has been granted in the past and now in a week prior to hearing and today suddenly i come in and there is suddenly new counsel and she had ever opportunity to be prepared for this hearing and is there is no reason to sub institute counsel for times in the past week this is pure gams men ship she wants the delay. bell phases zero toll me that. he said you know the reason that i'm call you is to try and get a delay of whatever sort. that is what we want. we want the
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delay. does anyone have any questions? >> no. okay thank you you can sit down for the moment. all of you can sit down and is there any public comment on this item? okay so then commissioners unless you have further questions the question is before you is whether you wish to grant a continuance. >> yeah, i think that apart from the merits of the case that we are not hearing at this particular moment and time is what we need to decide is if there is good cause for a continuance in my mind that is the question and what i'm trying to narrow it too at this point in time and whenever it's advantageousous to have continuous is debatable and an interpretation of the loll that we will have to confront once we actually hear the case but i would canship client to grant a continuance and i would find that there is good cause granted that counsel has stated he is not prepared to represent the
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appellate here and if it makes others feel more comfortable, i would be willing to say that no further continuances will be granted if we decide to vote to grant the continuance. >> i'm of similar mind and i would subject january 16th. i would suggest next week. >> we are not here. i'm -- you know and i think anytime process are used to process are manipulated and in a manner that is inappropriately, i'm troubled by that and i do not have any basis to disbelief the representations of the city attorney with
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respect to just finding any reason for a 38 and if there is a potential argument that is used to the advantage of the appellate, and for that reason a delay is being asked for, i'm st. inclient to grant a continuance. but, i don't have any questions for you right now: but i may be alone here so, that is my views at this moment. normally, i would typically in my own practice and here i would think that a continuance would be warrantied upon retention of new counsel, that is standard, in the profession but i'm troubled by some of the representations that have been
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made today.. >> okay well i would move to grant the continuance based on good cause given the new substitution of counsel and i would move to continue it to january 16th. okay and that would be the whereas continuance granted. are you interested in allowing any additional briefing for. yes. >> how many pages of additional briefing? what do we give 12? >> 12 is the initial allotment yes. i would say six. but it's new counsel but they already have briefs. yeah, we can do it in six pages.
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>> six pages. okay so would that be six pages with unlimited exhibits and the appellate anti-'s submittal will be three thursdays prior and the department submittal one thursday prior that is the normal schedule. >> that doesn't really give much time though does it. the appellate submittal would be due on the 27th. >> okay that is fine. okay so do you all that you understand the board has made a motion if it fast passes the matter would be continued to january 16th with 6 pages of additional briefing allowed and your client's pages would be due three thursdays prior to the hearing and your brief is one day prior to the hearing which, is the 10th of january and before we take a vote, i want to ask was there an issue that
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came up that you need to clarify? yes, they i have compelling evidence of appellate's lack of candor to this tribunal in which she has claimed that she is unable to speak english or understanding proceedings and i think that her untruthfulness in this issue as i can demonstrates bearing directly on the credibility of this request and on the likelihood of gamessen ship behind it and i would like a minute or two to present that evidence to you. are you saying that we don't need translation services is that the point that you are making? >> the point that i'm making is. on credibility. >> yeah -- but is it substance that you are presenting to us indicating that no translation services are required and. >> i do believe that,that is the case and the reason i'm offering this is to go to a
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appellated credibility and to the good fate that she has prepped in front of this body as you consider blue to give her additional time based on her representations that is required here. >> i don't believe that is relevant. sorry, i would agree with commissioner. >> okay. thank you. >> okay so commissioners i would call a roll on that motion and that is to continue this matter to january 16th for the additional briefing as previously described vice president honk,, that is pass on four to one vote and we will have this matter continued to january 16th and so now we will move onto item six a six b and
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six c and six d which will be heard together and 12 d-1 05, six, seven and eight all regarding the property at 530 -- street and by josh snider and dennis steward regard ago protesting thishance of august 20th 2012 to brandon fox to the permit to demolish a building of single residence with one thousand 30 feed feet of ground floor area and protesting thishance of august 20th to a building four story two unit building with 4,015 feet of ground floor area these matters were heard on october 17th 2012 and allowed the commissioner to participate in the if i am vote however two things have changed since the board continued these matters for the reason country is that
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we have commissioner honda joining us and two is that we have the party have engaged on some discussions to try to narrow the issues of dispute and so with the president's consent we can giveth each party a few minutes to address the board. i think we could start perhaps it's best to start with the permit holder in this case since they have alternate plans to propose. that would be good. >> so three minute? >> three minutes precise. commissioners a little blag jay for the permit holder and is we did have a meetings and we thank you for the opportunity to work further with the appellates and we did a revise design initially in front of this hearing that the real problem was with the rather of the of the building and if i can have the overhead on i'll show you again what that looked like.
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one minute. >> i have a disclosure i have spoken's attorney's office and they advise me that i do not have a consistent and i can conflict of interest and the only relationship that i share with brendan fox is that we are in the same industry and the letter was written on behalf of hoe would he and he is employed by zephyr employees and we are all independent and we have six of and is he is not in my office. >> thank you and one other thing, i believe you have had the opportunity to review the video at the prior hearing. yes i did. >> okay mr. blag swrai. if i could have the
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overhead please. commissioners this is the only design and you can see there was a back stair at the rather of the building and this guideline shows the building to the north and there was a bump out to that building. this is the rendering of what the original design would look like and i also just want to point out again, this rather bump now because it's relevant in terms of the design revision and is again, we weren't solved with this and neither were the neighbors and we thought this was the primary concern of neighbors. when we met we did a design revision, the neighbors were primarily kept obviously and wanted the building reduced in height and we thought that the concern was with the rather it's going to have the overhead again please? you can see what we propose was to basically do a step back in the back to lower it and to kind-of give


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